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Overview Introduction Review of 5 Provinces regarding legislation and JP Issues to solve Implications and future directions II. III. IV. V.

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Presentation on theme: "Overview Introduction Review of 5 Provinces regarding legislation and JP Issues to solve Implications and future directions II. III. IV. V."— Presentation transcript:

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3 Overview Introduction Review of 5 Provinces regarding legislation and JP Issues to solve Implications and future directions II. III. IV. V.

4 Legal As of 2006, approximately 1,600 Canadian families are engaged in various developmental delays-related legal actions. British Columbia, Ontario and Alberta have been very active with multiple legal actions. Other provinces with recent and current ASD legal actions include Quebec (very large class action), Nova Scotia, New Brunswick and Newfoundland.

5 The premise of the most legal actions in Canada It is discriminatory not to provide scientifically validated effective treatment to certain groups of people. Families also take the government to court arguing that the eligibility cut-off is discriminated on the basis of age (section 15 of the Charter)(rf. Wynberg V. Ontario). Claiming of a violation of Section 7 of the Charter because ‘children were subjected to compulsory special education that was ineffective or harmful.

6 Legal Framework The freedom of each province to include or exclude a specific treatment in its insured non core services explain the notable differences among provincial programs for the treatment of children with DD

7 Through the Child Welfare Act Review in 2002, families and other key stakeholders identified the need for Separate legislation Improved integration and coordination of supports and services, including enhanced transition planning and a multidisciplinary approach Improved access to information regarding government programs, services and community resources Enhanced family-centred supports and services where families have meaningful involvement in making decisions about supports and services. Through the Child Welfare Act Review in 2002, families and other key stakeholders identified the need for Separate legislation Improved integration and coordination of supports and services, including enhanced transition planning and a multidisciplinary approach Improved access to information regarding government programs, services and community resources Enhanced family-centred supports and services where families have meaningful involvement in making decisions about supports and services. Alberta

8 Disabilities Act-Preamble “ honour and respect the dignity and equal worth of children with disabilities; ” “ recognition for family ’ s ability to care for and to promote the development of children with disabilities; ” “ the value of family-centred support and services in empowering and preserving families of children with disabilities; ” “ recognition that the individual needs of children with disabilities are most effectively met through an integrated and multi-disciplinary approach; ” and “ recognition for the importance of facilitating the inclusion of children with disabilities in community life. ” Alberta

9 RF E.(G.)V. Alberta (Child Welfare Appeal Panel)2003 CarswellAlta 1459,{2003}A.J. No. 157 (Alta.Q.B.) ‘Last infos Alberta pays up to 60,000 dollars annualy per qualifying child up to age 18- and anyone who comes to the province can apply-’ CBC news 10 Jul 2006 Alberta

10 B.C. Legislation The British Columbia Child, Family and Community Service Act It stipulates that “the community should be involved, wherever possible and appropriate, in the planning and delivery of services,including preventive and support services.” British Columbia

11 The case of reference The Auton case was the first case where a provincial appeal court upheld a lower court's decision that Charter rights require a provincial government to pay for a specific health treatment. (Auton Guardian ad Litem of. The provincial ruling was appealed by the B.C. Government to the Supreme Court of Canada. Almost every provincial and federal Attorney General intervened in the case, and there were a record 29 interveners - a clear indication of the importance of this case not only to the autism community, but to the health and disability communities, and to every provincial government. The Supreme Court overturned the two lower court rulings. The Auton case was the first case where a provincial appeal court upheld a lower court's decision that Charter rights require a provincial government to pay for a specific health treatment. (Auton Guardian ad Litem of. The provincial ruling was appealed by the B.C. Government to the Supreme Court of Canada. Almost every provincial and federal Attorney General intervened in the case, and there were a record 29 interveners - a clear indication of the importance of this case not only to the autism community, but to the health and disability communities, and to every provincial government. The Supreme Court overturned the two lower court rulings. British Columbia

12 Nova Scotia Dassonville-Trudel v. Halifax regional School Board raises several issues Government agencies cannot ‘blindly’ following guidelines and policies when required to exercise their discretion with respect to funding Problems also with transition planning in the move from preschool to public school programs Nova Scotia

13 This case highlighted several key aspects of the funding and jurisdictionnal disputes associated with programming for children with autism. One of the question: what is a reasonnable balance between parental funding requests and limited public resources, especially between parental funding requests and limited public resources, especially when the gap between the two is extreme. This case exemplifies the serious procesural,fiscal and jurisdictionnal questions which often arise in the provision of services for children with autism. This case highlighted several key aspects of the funding and jurisdictionnal disputes associated with programming for children with autism. One of the question: what is a reasonnable balance between parental funding requests and limited public resources, especially between parental funding requests and limited public resources, especially when the gap between the two is extreme. This case exemplifies the serious procesural,fiscal and jurisdictionnal questions which often arise in the provision of services for children with autism. Nova Scotia

14 Questions of discretion in adherence to guidelines and policies extend beyond funding disputes to other aspects of services delivery for children with DD, including transition planning in th move from preschool to public school programs. Nova Scotia

15 Ontario legislation « The Ontario Child and Family Services Act » which defines special needs as « a need that is realted to or caused by a behavioural, developmental, physical, mental or other handicap » Ontario

16 Ontario Gvt Action Since 2000, the Ontario government had paid for applied behavioural analysis for children under the age of six with autism. Thirty families with autistic children took the government to court, arguing that the cut-off was discriminated on the basis of age. In July 2006, the Ontario Court of Appeal sided with the government and said the funding can stop at age six. Ontario

17 Wynberg V. Ontario 2005 CanLII 8749 (ON S.C.) Each of these children is "exceptional" within the meaning of s. 8(3) of the Education Act.... Once that exceptionality has been identified, special education programs and services become available through publicly funded district school boards pursuant to s HOWEVER Ontario JP Ontario

18 Ontario JP the province has not allocated the funding required to deliver programs like IBI. This leaves schools and school boards in the untenable position of addressing parental demands for services that are not adequately funded. The author concluded that the Wynberg decision would make it more difficult for provincial governments to strangle funding to school boards and then try to place the financial burden on the boards for the provision of services to children with special needs Ontario

19 Ontario JP LAST DECISION A NEW DIRECTION? Ontario

20 R.Q., CHAPITRE S-4.2 " Toute personne a le droit de recevoir des services de santé et des services sociaux adéquats sur les plans à la fois scientifique, humain et social, avec continuité et de façon personnalisée " (article 5) toutefois " Les droits aux services de santé et aux services sociaux et le droit de choisir le professionnel et l’établissement prévus aux articles 5 et 6, s’exercent en tenant compte des dispositions législatives et réglementaires relatives à l’organisation et au fonctionnement de l’établissement ainsi que des ressources humaines, matérielles et financières dont il dispose. "(article 13) Soins appropriés Quebec

21 " Toute personne dont la vie ou l’intégrité est en danger a le droit de recevoir les soins que requiert son état. Il incombe à tout établissement, lorsque demande lui en est faite, de voir à ce que soient fournis ces soins. " (article 7) Informations " Tout usager des services de santé et des services sociaux a le droit d’être informé sur son état de santé et de bien-être, de manière à connaître, dans la mesure du possible, les différentes options qui s’offrent à lui ainsi que les risques et conséquences généralement associés à chacune de ces options avant de consentir à des soins le concernant. " (article 8) Consentement requis " Nul ne peut être soumis sans son consentement à des soins, qu’elle qu’en soit la nature, qu’il s’agisse d’examens, de prélèvements, de traitement ou de tout autre intervention. " (article 9) Consentement aux soins Le consentement aux soins ou l’autorisation de les prodiguer est donné ou refusé par l’usager ou, le cas échéant, son représentant ou le tribunal, dans les circonstances et de la manière prévues aux articles 19 du Code civil du Bas Canada. " (article 9) Représentant "Les droits reconnus à toute personne dans la présente loi peuvent être exercé Quebec

22 Johnson v. Lester B. Pearson School Board Facts This case highlights the complexity of transitions from preschool to school settings for children with autism Quebec

23 Johnson v. Lester B. Pearson School Board There are several key determinants of successful transitions to public school, chief among them the development and implementation of a collaborative transition plan which affords all parties an opportunity for orientation to the child's new educational program. For children with autism, the transition to public school is sometimes overshadowed by the simultaneous discontinuation of early intensive treatment programs when the child reaches six years of age. This unfortunate coincidence has prompted several court challenges across the country. Quebec

24 SOME ISSUES TO SOLVE Financial Burden? Which special services and programs fall within the domain of public education? If public education is free, why are parents paying for these programs? Dilemma of limited public funds to meet unlimited public demands for services ?

25 SOME ISSUES TO SOLVE transitions between pre-school and public school programs may present challenges for children with developmental delays and for their families Type of programs Age Limits A proper definition of “Reasonable Accommodation Jurisdictional Responsibility Coordination between the federal and the provincial level regarding actions for Children with DD

26 IMPLICATIONS AND FUTURE DIRECTIONS School boards across the country are grappling with the challenges exemplified by the litigation in special education Proposed solutions

27 Provincial and Territorial Legislatures Proposed solutions The differences between the American and Canadian education systems A creation of national standards and equitable funding provisions? IMPLICATIONS AND FUTURE DIRECTIONS

28 Role of the Federal Government? Must legal framework of education in Canada be revisited ? Are national definitions and standards required to create a Canadian model of appropriate education for children with special needs?


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